Two recent appellate court cases illustrate different aspects of the law’s response to abuse and exploitation of seniors. Taken together the two cases underscore that protection of vulnerable seniors can be a priority of the legal system.
The first case tested California’s law on elder abuse, which permits the courts to (among other things) disinherit a family member or devisee who exploits a senior. Laura Marie Lowrie had accumulated an estate of approximately $1 million during her 89 years. During the last ten years of her life her son Sheldon Lowrie took over more and more of the management of her finances. By the time of her death in 1999 he had gotten her to transfer two houses to him. He had also persuaded her to modify her revocable living trust so that the bulk of her estate would pass to him.
Ms. Lowrie’s granddaughter Lynelle Goodreau believe that her uncle had taken financial advantage of his mother. She brought an action to set aside changes in the living trust, and to secure return of property that should have belonged to the trust.
Ms. Goodreau alleged that her uncle had abused his mother physically and financially. According to her, he isolated his mother from contact with other family members. He taped her telephone handset so that she could not make or receive calls, he locked her security door from the outside so she could not leave her home, and he put a warning sign on the front door instructing social workers and peddlers not to bother her.
Among the choices available to the judge under California’s elder abuse statute was the possibility of ordering that Sheldon Lowrie should be treated as having died before his mother. He was the remainder beneficiary of her trust, and would receive the bulk of her assets under its terms. If he had died before his mother, however, most of the trust assets would pass to Ms. Goodreau.
After hearing testimony from most of the family members, plus neighbors, friends and acquaintances of Ms. Lowrie, the trial judge decided that Mr. Lowrie had taken advantage of his mother. The judge noted that he had stolen hundreds of thousands of dollars from her and from the family business, and that he had bought seven or eight antique automobiles, had paid off his own personal credit card bills, and had accepted “gifts” of most of her physical property.
Based on that testimony the trial judge decided that Mr. Lowrie should be treated as having predeceased his mother. It ordered that he pay Ms. Goodreau $665,623.60 to replace the money he had taken from his mother, plus $250,000 for his mother’s pain and suffering, plus another $50,000 in punitive damages. The California Court of Appeal upheld the judgment and the finding of disinheritance. Estate of Lowrie, April 30, 2004.
Arizona law is similar to the California provision on elder abuse. One alternative available to the courts in extreme cases of abuse, neglect or exploitation is to work a disinheritance of the offender. Just as in the Lowrie case, that would result in the abuser/exploiter being treated as already deceased, and the elder’s property passing to heirs or devisees other than the offender.
In the second elder abuse case reported in recent weeks, a care home operator in Hawai’i was convicted of manslaughter in the death of a resident of her home. The Hawai’i Court of Appeals upheld the conviction, despite her argument that it had not been shown that she intended any harm.
Chiyeko Tanouye was eighty years old at the time of her death. She had lived in an adult care home operated by Raquel Bermisa for only a few months, but her condition had worsened dramatically and quickly.
Ms. Bermisa took Ms. Tanouye to her doctor’s office on June 30, 1999, for treatment for a urinary tract infection. During that visit the doctor noted that Ms. Tanouye had a decubitus ulcer (a bedsore) which, at about five centimeters in size, required attention. He instructed Ms. Bermisa to wash the ulcer with Betadine cleaning solution and to apply Intrasite gel daily, and to bring her back a week later for a follow-up visit.
When Ms. Bermisa returned with Ms. Tanouye on July 7, the decubitus ulcer had not cleared up. The doctor referred her to a specialist for further treatment.
Ms. Tanouye was seen by the specialist just two days later, but her condition had worsened markedly. He saw two decubitus ulcers rather than one, and both had areas of dead tissue. He cleaned the ulcers, applied sterile gauze moistened with saline solution, and instructed Ms. Bermisa to change the dressing two or three times each day. He scheduled another follow-up visit for a week later, but Ms. Bermisa and Ms. Tanouye did not return.
Instead, Ms. Bermisa arrived at the Pali Momi emergency room a month later with Ms. Tanouye in the front seat of her car. She told nurses at the emergency room that she had been out shopping with Ms. Tanouye and the other residents of her care home, and that something was wrong with Ms. Tanouye.
Something was indeed wrong. Ms. Tanouye’s decubitus ulcers had grown much larger, and they showed no signs of treatment. The smell from the ulcers was overpowering to the nurses, and they noted that one of Ms. Tanouye’s heels was also ulcerated. They tried their best to treat Ms. Tanouye but she died the next day.
Ms. Bermisa was charged with manslaughter for her apparent failure to provide adequate care. At her trial testimony was offered from an adult protective services worker, the nurses who provided care to Ms. Tanouye during her final hospitalization, the doctors who had treated her and directed Ms. Bermisa how to care for her, and the trainer who had given Ms. Bermisa instruction leading to her certification as a Certified Nurse’s Aide (CNA). The jury convicted her, and she appealed.
The Hawai’i Court of Appeals affirmed Ms. Bermisa’s conviction. Although she argued that the prosecutor had not shown that she had any intention to harm Ms. Tanouye, the court found that she had acted recklessly, and that she had a duty to provide adequate care. The court also noted that Ms. Bermisa was properly trained to recognize the problems Ms. Tanouye was suffering, and she should have recognized the importance of maintaining the treatment regimen directed by Ms. Tanouye’s physicians. When she failed to follow through with proper treatment, and apparently failed to appreciate the significance of her resident’s condition, she violated her duties as a caretaker. State v. Bermisa, May 7, 2004.
Abuse of the elderly may be physical or financial. In some cases caretakers or family members may simply have failed to provide adequate care and that neglect may have lead to injury (or even death). Most elder care professionals recognize that all three kinds of misconduct are seriously under-reported, making it difficult to accurately determine how common the problems actually are. That difficulty is exacerbated by adult protective organizations’ inclusion of “self-neglect”—the failure of a frail elder to seek adequate care for themselves—in the statistical mix.
Two recent California criminal cases are evocative of the kinds of physical abuse and neglect inflicted on elders. Both arise because the defendants, though acknowledging that they were guilty of criminal acts, sought to reduce the severity of sentences imposed for their crimes.
David Wallace Taggart, who lived in Ventura County, had a problem with cocaine. He had been in trouble several times as a result of his drug addiction and drinking, and he was on probation for a drunk-driving offense when he embarked on a three-day cocaine binge, leading to a delusional state and a violent outburst. He began by tearing up his girlfriend’s house, then jumped into his truck, drove it into the fence of his elderly neighbors the Thompsons, and attacked both the wife and husband without any provocation. He ended up striking Mr. Thompson with a frying pan, knocking him out.
When Mr. Taggart was sentenced to nine years in prison he appealed. His argument: he was delusional at the time of the attacks and that should have mitigated his sentence. The Court of Appeals noted that he had a history of violence and drug abuse, and declined to reduce his sentence. People v. Taggart, September 19, 2002.
Nicholas Hayes Raye lived in Napa County. He had befriended an elderly woman, Helen Johnson, and moved in with her, helping her with small household chores and projects. As Ms. Johnson’s ability to take care of herself deteriorated Mr. Raye became more and more responsible for her care. After Mr. Raye noticed open sores on Ms. Johnson’s back he called 911, and state social services workers became involved.
Despite repeated attempts to get Mr. Raye to turn Ms. Johnson in her bed, feed her adequately and keep her wounds clean, he did not seem to be able to cope with his landlady’s condition. Instead, he chased nurses and social workers out of the house. Ms. Johnson’s condition worsened, and she died at home a few weeks after Mr. Raye’s care began.
Mr. Raye obviously suffered from mental problems of his own, but he was convicted of elder abuse and sentenced to one year in jail and five years of probation. He appealed because, among other things, he objected to the prosecutor introducing evidence that he had also taken financial advantage of Ms. Johnson prior to her physical condition worsening. The Court of Appeals upheld Mr. Raye’s conviction, finding that the evidence tended to show the relationship between Mr. Raye and Ms. Johnson, and that any error was harmless. People v. Raye, September 19, 2002.
When a loved one is institutionalized, family members usually do not have the skills and information necessary to closely monitor the quality of care. They usually rely heavily on the advice of the patient’s physician to direct the course of treatment. In those cases where the physician becomes part of the problem, it may be extremely difficult for family members to respond.
Girtha Mack resided in the Covenant Care Nursing and Rehabilitation Center in California. Her attending physician, Dr. Lian Soung, supervised her medical care at Covenant. Ms. Mack’s children were actively involved in her care, and regularly checked with both the nursing home and Dr. Soung.
According to her children, Ms. Mack was left in a bedpan for 13 consecutive hours and developed untreatable Stage III bedsores. Dr. Soung and the nursing home allegedly concealed that fact from the children for weeks, and refused to permit them to inspect the bedsores until the nursing home ombudsman intervened on their behalf.
Dr. Soung opposed hospitalization for Ms. Mack, insisting that the care she was receiving at the nursing home was appropriate. Two months later, Ms. Mack’s condition worsened, and Dr. Soung abruptly abandoned her as a patient. He refused to respond to requests for hospitalization by the nursing home staff. Ms. Mack died a few days later.
California law, like that of Arizona and other states, provides special protection against abuse, neglect or abandonment of elderly or dependent adults. Ms. Mack’s children brought a lawsuit against Dr. Soung, alleging that he had abused and neglected Ms. Mack. They also charged Dr. Soung with intentionally inflicting emotional distress on the family.
Dr. Soung persuaded the trial court to dismiss both complaints against him, and Ms. Mack’s children appealed. The California Court of Appeal agreed that the action for intentional infliction of emotional distress should be dismissed, but returned the case to the lower court for a trial on the neglect charge.
The court noted that the California law on abuse applies to “care custodians” and not physicians. The section of the law dealing with neglect, however, includes health care providers such as physicians.
By using the neglect statute, Ms. Mack’s family apparently hoped to accomplish two things. First, the action would not be governed by rules applied to medical malpractice lawsuits. Second, the possible recovery from Dr. Soung is larger because of the neglect statute’s enhanced penalty provisions. Now the Mack family will be able to pursue their litigation under that neglect statute. Mack v. Soung, May 17, 2000.
Arizona’s law is similar to that in California, but would be even easier for Ms. Mack’s children to apply. It covers “any person who has been employed to provide care” to a “vulnerable” adult. The language of the Arizona statute is unusually broad in a number of ways, including the definition of a “vulnerable” adult (“an individual who is eighteen years of age or older who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment”). Like California’s law, the Arizona statute provides for the possibility of punitive damages.
Physical, sexual, mental and emotional abuse of elderly and vulnerable adults is a growing problem not only in Arizona, but around the world. Such abuse is also a crime. Even the failure to report elder abuse may be a crime in some circumstances.
Arizona law particularly protects “vulnerable” adults. An adult is deemed vulnerable when he (or she) “is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment.” [Arizona Revised Statutes section 46-451(A)(10)]
Adult Protective Services, the Arizona state agency charged with responding to allegations of abuse, neglect and exploitation, reports that actual abuse appears to be less common than either neglect (including “self-neglect”) or financial exploitation. Still, the incidence of abuse is high and growing.
Who is abusing seniors? The classic profile of an abuser, according to experts, includes the following elements:
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The abuser is usually a son of the victim. Abuse by strangers is relatively rare, and when it does occur is almost always committed by a caregiver.
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The abuser is also usually unemployed and financially dependent on the victim. In fact, the most common term used to describe the individuals who become abusers is “lazy.”
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In addition, the abuser frequently has a drug and/or alcohol problem, and may also be addicted to gambling.
Some professionals are required by Arizona law to report even suspicions about abuse, neglect and exploitation. Physicians, psychologists, dentists, social workers and police officers are all required to file reports whenever they have a “reasonable basis” to believe that abuse, neglect or exploitation has occurred. Failure to make a report is itself a misdemeanor, and could lead to loss of licensure or other penalties.
Reports of abuse (like reports of neglect and exploitation) can be filed with Adult Protective Services or the local police or sheriff’s department. The law requires those reports to be filed immediately by telephone or in person, and the initial report must be followed up with a written report within two working days.
In order to make reporting abuse, neglect and exploitation simpler Adult Protective Services has established a statewide toll-free telephone number. Initial telephone reports can be filed by calling APS at 1-877-767-2385. Those with hearing impairments can call a special toll-free number at 1-877-815-8390.
Arizona is not the only state with a toll-free, centralized reporting number for elder abuse. Contact information for other states can be located at the National Center on Elder Abuse website at www.gwjapan.com/NCEA/report/index.html.
Abuse is often difficult to detect. Symptoms of an abusive relationship often (but not always) include dependence on the abuser, “hovering” by the abuser, isolation of the victim from friends and family, recent changes in behavior and/or spending patterns, and general anxiety on the part of the victim.
In the absence of a detailed employment agreement spelling out the grounds for discharge, most employees can be fired for any reason at all. Sometimes, however, notions of public policy override the ability of an employer to discharge an employee.
Jane Hausman worked for the St. Croix Care Center, a nursing home in Prescott, Wisconsin. She was the director of social services and one member of a five-person team charged with seeing to it that St. Croix’ patients received proper care. Beginning in 1992, she and some of the other members of her team became concerned about that quality of care.
In internal memos, Ms. Hausman detailed what she thought were shortcomings in patient care at St. Croix: patients falling from bed, staff members failing to respond to cries for help, disrespectful treatment of patients, improper diets and a general failure to investigate injuries and possible mistreatment. Over the course of nearly a year, Ms. Hausman saw little change in the treatment of her patients.
In March of 1993, Ms. Hausman contacted the regional Ombudsman for nursing home care, and ultimately requested an external investigation. Three months later, St. Croix fired Ms. Hausman and one other staff member. Both brought suit to recover their jobs and to secure damages for what they contended was a wrongful discharge.
St. Croix turned the claim over to its insurance company, St. Paul Insurance. The insurer argued that the policy was intended to protect patients, and that even if an employee was wrongfully discharged it should not have to pay any of the damages.
Meanwhile, the nursing home itself argued that Ms. Hausman was an “at will” employee—that she could be discharged for any reason or for no reason at all. The Wisconsin Supreme Court disagreed, citing the public policy interest in protecting nursing home residents from neglect or abuse. Furthermore, ruled the court, Ms. Hausman had a duty imposed by her state social work license, and she could not be fired for discharging that duty.
Now the Wisconsin Court of Appeals has decided that Ms. Hausman can recover her damages from St. Croix’ insurance company. The policy covered anyone injured by St. Croix “interfering with the rights provided to a person by a patient’s bill of rights or any similar law,” and the court reasoned that a Wisconsin law prohibiting retaliation against employees for reporting neglect was a part of the patient’s bill of rights, even though it protected employees rather than patients. Not only did Ms. Hausman prevail against St. Croix, but her claim was also covered by the facility’s insurance. St. Paul Fire and Marine Insurance Co. v. Hausman, October 5, 1999.
Last week in Phoenix, the Maricopa Elder Abuse Prevention Alliance hosted a two-day seminar on prevention of abuse, neglect and exploitation of the elderly. Speakers ranged from nationally-known advocacy leaders to local social service and legal practitioners.
Jeff Calvert, coordinator of the Alliance, listed some of the warning signs of abuse, distinguishing between physical signs (burns, bruises, decubiti, malnutrition, etc.) and behavioral signs. Calvert noted that many behavioral conditions may exist in elders not subjected to abuse, but that they may also indicate something is amiss. His list included:
Agitation, anxiety
Withdrawal
Isolation
Confusion
Fear
Depression
Anger
Disorientation
Resignation
Hesitation to talk openly
Implausible stories
Non-responsiveness
Donna M. Reulbach, director of a Massachusetts program to prevent financial exploitation by involving bank tellers and officers, described her agency’s efforts with banks. She also listed some of the indicators that financial professionals can use to recognize exploitation. The elder customer may be:
accompanied by a stranger who urges large cash withdrawals
in the company of family members who appear to speak for the elder and make all decisions
nervous or afraid of the person accompanying them
giving implausible explanations about financial matters
unable to remember transactions
fearful that they will be evicted (or sued) if money is not given to a caregiver
isolated from family or supports (or isolated from family other than the relative accompanying them to the bank)
Lori Stiegel, Associate Staff Director of the American Bar Association’s Commission on Legal Problems of the Elderly, described national trends in prevention and punishment of abuse, neglect and exploitation. She noted that Arizona’s recent inclusion of “emotional abuse” in its criminal statute, coupled with the broad definition of “vulnerable adults” as the group entitled to special protection, made Arizona one of the more progressive states in dealing with problems of abuse, neglect and exploitation.
Phoenix prosecutors Terri Clarke and Pamela Svoboda, together with Phoenix Police Lieutenant Ken Tims, described the goals of and problems encountered by a concerted program to prosecute abusers. Their most notable concern: the difficult in prosecuting cases where the victim may be incapacitated, ill, or deceased, or may now be denying any abuse took place. They noted that abused elder women may commonly suffer from low self-esteem, come from traditionalist backgrounds, demonstrate “learned helplessness” and see their own role as keeping the peace between the abuser and the rest of the family (or society).
Phoenix Doctor Walter J. Nieri noted that many instances of abuse and neglect (as well as some examples of financial exploitation) come from long-term care settings. While nursing homes are closely regulated, and the possibility of undetected abuse is consequently lower, adult care homes are much more numerous and subjected to less state monitoring. He also pointed out that much abuse and neglect can be traced to caregiver stress, and provided a checklist for assessment of the level of stress in individual cases.
Susan Aziz and Chayo Reyes described the Los Angeles Fiduciary Abuse Specialist Team, a multi-agency task force established to combat the “crime of the nineties:” elder financial abuse. The three-year-old program involves Police, Public Guardian, Adult Protective Service and Probate Court representatives, among others. The Team conducts training sessions and focuses on fiduciary abuse.
In February, 1983, Minnesotan Georgia Hoppe signed a durable power of attorney. She trusted Paul Bengston, an employee of the Green Lake State Bank where she kept her accounts, and so named him as her agent in the power of attorney. Although Mr. Bengston left the bank’s employment a few years later, Ms. Hoppe continued to name him as her agent.
Six years later, Ms. Hoppe was hospitalized and then released to a nursing home. Almost immediately, Mr. Bengston began to take advantage of her trust. In the nine months after her institutionalization, Mr. Bengston took about $100,000 from her accounts.
Finally a bank employee became suspicious. Allen Struck contacted Ms. Hoppe at the nursing home, hoping to ask her about the transfers. Ms. Hoppe was reluctant to discuss her finances with him, and pronounced her complete confidence in Mr. Bengston’s handling of her accounts.
Minnesota’s “Vulnerable Adults Reporting Act” (similar in most respects to Arizona’s law requiring reporting of abuse, neglect and exploitation) required bank employees to report their suspicions of financial exploitation, and so Mr. Struck did what the law required. He first contacted an intake worker at the County Family Services Department (the equivalent of Arizona’s Adult Protective Services); the intake worker in turn contacted the local Sheriff’s office, the County Attorney and the state Department of Health Facilities. All agreed that an investigation should be undertaken, and that Ms. Hoppe should be evaluated to determine whether she was competent to make financial decisions.
What happened next was complete failure of the system to investigate the charges against Mr. Bengston. For over seven months, no case worker visited Ms. Hoppe, interviewed Mr. Bengston or followed up on Mr. Struck’s report in any way. Meanwhile, Mr. Bengston took an additional $64,500 of Ms. Hoppe’s money, and the ever-vigilant Mr. Struck made another report to the Family Services Department.
Finally, in October, 1990, the protective agency lumbered into action. A special guardian was appointed for Ms. Hoppe, the power of attorney revoked, and proceedings begun to recover the misappropriated funds. When Mr. Bengston proved to have few remaining assets, the special guardian sought recovery from the bank and the County Family Services Department.
The County asked the judge to dismiss Hoppe’s suit, claiming that nothing in the Vulnerable Adults Reporting Act required the County to actually conduct an investigation. The judge agreed, and so dismissed the suit. Minnesota’s Supreme Court ultimately agreed with the District Court decision.
According to the Minnesota Supreme Court, the failure to report abuse, neglect or exploitation is a crime and subjects the person failing to make reports to civil liability. But the protective services agency is under no obligation to act in a timely fashion on the allegations. Ms. Hoppe’s estate (she died while legal proceedings were pending) recovered nothing from the County for its failure to investigate Mr. Bengston’s wrongdoing. Hoppe v. Kandiyohi County, Feb. 16, 1996.
Oregon residents Edward and Patricia Hagan did what many older adults do; they gave their son Gerry a general, durable power of attorney so that someone would be able to handle financial matters for them. As too often happens, their son misused the power.
Gerry borrowed $100,000 from a third party, Jay Shore. Later, he borrowed another $95,000 from Lorraine Hall. He used the money in both cases for his own purposes. Unfortunately for Mr. and Mrs. Hagan, in both cases he secured the loans by giving a deed of trust against his parents’ home. He signed both deeds as his parents’ attorney-in-fact.
Mrs. Hagan slowly lost her ability to handle financial affairs, but the encumbrances remained a concern for Mr. Hagan. In 1994, acting for both himself and his wife, Mr. Hagan brought an action to declare them invalid. His attorney argued that Gerry clearly exceeded his authority in signing the deeds, since the loans were for his own benefit and not his parents’.
Mr. Shore and Ms. Hall, through their attorneys, argued that Gerry had the authority to place encumbrances on his parents’ property. They pointed to a provision in the power of attorney which released all third persons from “responsibility for the acts and omissions” of Gerry.
The Oregon Court of Appeals ruled that Gerry exceeded his authority when he used the powers of attorney to encumber the property. This is so because the loans clearly did not benefit Mr. and Mrs. Hagan (despite the argument by the lenders that they may have derived some emotional benefit from permitting loans to be made to their son). Consequently, the trust deeds are invalid, and the court declared that the encumbrances were unenforceable. Hagan v. Shore, Oregon Court of Appeals, April 17, 1996.
The Hagans’ dilemma suggests two further concerns. First, even though they were successful, the legal proceedings were time-consuming and expensive. Mrs. Hagan was apparently already losing her capacity at the beginning of the proceedings, and the psychic and emotional toll on Mr. Hagan was presumably immense.
Furthermore, it should be clearly understood that the Hagans might have experienced a different result in only slightly different circumstances. If, for instance, any portion of the loan proceeds had been used for their benefit, or if Gerry had testified that he discussed the matter with either or both of them, or if the power of attorney had conveyed the power to make gifts to Gerry, the Hagans might have lost their home.
Both lenders would have their first recourse to Gerry, so that every encumbrance of property would not necessarily result in loss of the property. Nonetheless, the potential for loss and abuse is substantial. Most local practitioners can tell more than one story like the Hagans’.
How can concerned seniors plan for circumstances such as the Hagans”? There are several things which might have been suggested to Mr. and Mrs. Hagan to head off the kind of trouble they experienced:
Someone other than Gerry should have been considered as a potential agent. Family members are not the only available choices. It is likely that Gerry’s tendencies were known to his parents, and they should have known him to be unsuitable.
Specific limitations can be placed on agents. The power of attorney might have precluded the ability to encumber the home, for example.
Not everyone should have a power of attorney. If the Hagans were at all uncertain, they should have been advised that they could simply rely on the conservatorship process within the courts. While this would have increased expenses and administrative difficulties, it would have prevented the costs incurred by Mr. and Mrs. Hagan.
The 1996 Arizona Legislature has completed its work. While the session seemed to be primarily devoted to tax reduction and equity issues, and Governor Fife Symington exercised a record number of vetoes, little controversy arose over most issues of special concern to the elderly.
Recovery for Exploitation
House Bill 2457 expanded the existing provisions regarding exploitation of vulnerable adults. Before the change, “vulnerable” adults had specific protections against abuse, neglect and exploitation. The new law, however, makes it easier to pursue those who exploit the elderly and disabled.
The new law is aimed at exploiters who hold positions of trust with vulnerable adults. Included are those who hold powers of attorney, or act as conservator or trustee for the elderly or disabled. In addition, the law applies to anyone who provides care for the victim (such as adult care facility operators or nurses’ aides); even joint owners on bank accounts or other assets are included.
HB 2457 expands the reach of existing law against exploitation in another way. It defines a new legal concept of “intimidation or deception” as prohibited, and includes the terms in the concept of exploitation.
The new law makes exploiters liable for triple the damages caused to their victims. Finally, it also provides that such an exploiter is automatically disinherited from the victim’s estate.
While the acts described in HB 2457 were already illegal, the new law should provide powerful tools to be used against exploiters of the elderly and disabled. The new law was signed by Governor Symington on April 23, and can also be referred to as Chapter 274 of the 1996 Session Laws.
Emotional Abuse
House Bill 2053, signed by Governor Symington on May 2, makes it a crime to emotionally abuse a vulnerable adult. Emotional abuse joins physical and sexual abuse, imprisonment and neglect as the basis for criminal charges.
The law defines emotional abuse:
“A pattern of ridiculing or demeaning the vulnerable adult who is a patient or resident in any setting in which health care, healthrelated services or assistance with one or more of the activities of daily living is provided, making derogatory remarks to the vulnerable adult, verbally harassing the vulnerable adult or threatening to inflict physical or emotional harm on the vulnerable adult.”
While the addition of emotional abuse to the list of criminal acts is both welcome and important, it should not be confused with provisions for reporting abuse, neglect or exploitation. Those sections have not been changed by the new law.
Powers of Attorney
When the Legislature made substantial changes to the law regarding financial powers of attorney last year, it introduced new problems of interpretation. House Bill 2485 now rectifies those problems.
The new law makes it clear that powers of attorney executed before last year’s changes do not have to have a witness or be notarized. Those powers of attorney signed after the new law will need to be witnessed and notarized by separate individuals (some people had treated the notary as a witness under last year’s law). It also eliminates the confusion from last year about whether health care powers of attorney would also require a witness and a notary; witness requirements will now only affect financial powers of attorney. HB 2485, signed by the Governor on April 20, becomes Chapter 244 of the 1996 laws.
Many elders have been advised to execute Durable Powers of Attorney, both for financial and health-care decisions. The use of such powers (DPOAs, in lawyers’ shorthand) has become widespread. The opportunity for abuse has also grown.
Massachusetts resident Frank Gagnon, 85, gave a power of attorney to his daughter Joan Coombs in late 1990. Three months later he apparently reconsidered his decision and revoked the DPOA, though he did not tell his daughter he had done so.
Within a year Mr. Gagnon had found a buyer for a piece of property he owned in New Hampshire. He signed a sales contract for $750,000 and informed his family (including his daughter) of what he considered his good fortune.
Ms. Coombs did not agree. To prevent the sale of the property, and without discussing the matter with her father, she created a trust for her father’s benefit, naming herself as Trustee. Using her DPOA, she transferred the New Hampshire property into the trust’s name.
Mr. Gagnon demanded that his daughter terminate the trust and return the property to him. She refused, and Mr. Gagnon filed an action against her. At trial, the Court ruled that, since Ms. Coombs did not actually know her power of attorney had been revoked, the transfer would stand.
The Massachusetts Court of Appeals reversed the trial court’s finding. The higher court noted that Ms. Coombs had a fiduciary duty to her father, which was inconsistent with her actions in encumbering his property.
Furthermore, said the Court of Appeals, her DPOA was effectively revoked when she learned that her father had sold the New Hampshire property. She was ordered to return the property to her father. Gagnon v. Coombs, Mass. App. Ct., August 23, 1995).
Why Seniors May Be Slow To Marry
Most people who deal regularly with the elderly know that older couples often live together without getting married.Some may not realize how many legal encouragements there are for such a practice. A few of the common reasons for couples to remain unmarried:
Income Taxes. Married couples (and not just the elderly) pay a marriage “penalty tax”; two wage earners filing as single individuals pay less in income taxes than they would as a married couple.
Social Security Benefits. Upon death of a spouse who received higher benefits, the survivor’s Social Security payments will be increased to the same level. Upon remarriage, the higher benefits are returned to the lower level.
Social Security Taxes. A married couple pays taxes when the total Social Security benefit exceeds $32,000. The same couple can earn $25,000 each before paying any taxes if they remain unmarried.
Home Sales. If one member of a prospective couple has used the one-time over-55 tax exclusion for the gain from sale of a home, marriage will cause the other party to lose his or her exclusion.
Medicaid Eligibility. Marriage may expose the healthy spouse’s separate assets to long-term care costs for the other spouse in the event of nursing home placement.
And those are just the federal rules discouraging marriage.
